Hershfield v. Commonwealth , 14 Va. App. 381 ( 1992 )

Benton, J.,

concurring.

Decisions from the United States Supreme Court post Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), have made it clear that legislatures may not criminalize on a per se basis the use of vulgar or offensive words. See Gooding v. Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15 (1971). In order for statutes such as Code § 18.2-416 to be valid, they may punish only those words that fall within a “ ‘narrowly limited [class] of speech’ . . . ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Gooding, 405 U.S. at 522 (quoting Chaplinsky, 315 U.S. at 571, 572). Those words have come to be known as “fighting words.” Gooding, 405 U.S. at 522. In Gooding, the accused was convicted under a statute which forbade the use of “opprobrious words or abusive language tending to cause a breach of the peace.” Id. at 524. The Supreme Court reversed the conviction, holding that “[d]erisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of peace.'’'’ Id. at 523 (quoting State v. Chaplinsky, 91 N.H. 310, 313, 320-21, 18 A.2d 754, 758, 762 (1941)) (emphasis added).

I agree with the majority that, in Mercer v. Winston, 214 Va. 281, 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988 (1974), the Supreme Court of Virginia gave Code § 18.2-416 a narrowly drawn interpretation to save it from constitutional infirmity. Compare Gooding, 405 U.S. 518 (1972), with Chaplinsky, 315 U.S. 568 (1942). The Mercer decision determined that the statute “was aimed at preventing personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation.” 214 Va. at 284, 199 S.E.2d at 726. Consequently, the Court “limit[ed] [the] application [of the statute] to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Id. Consistent with this limiting construction, and because the statute criminalizes the use of language, the Court further construed the statute to prohibit only “words of a kind and nature spoken under such circumstances as by their utterance reasonably tend to provoke a breach of the peace." Id. (emphasis added).

Thus, in determining whether a violation has occurred it becomes necessary first to analyze the words spoken in order to determine whether they are “fighting words.” “Fighting words” are personally abusive epithets that are inherently likely to induce the ordinary person to react violently. Cohen, 403 U.S. at 20. The majority correctly explains that the constitutional application of this statute depends upon whether “fighting words” were spoken in Walker’s presence and whether these words were spoken under circumstances likely to provoke a breach of the peace. I believe, however, that the majority’s holding that the conviction cannot stand solely because the parties were separated by sixty feet and a fence, thus leaving the “face-to-face” requirement of the statute unsatisfied, leaves the impression that Hershfield’s utterance was inherently within the category of “fighting words.” I would hold that they were not.

“Fighting words” are “ ‘personally abusive epithets’ and not merely [words that are deemed] a socially unacceptable mode of communication.” State v. Authelet, 385 A.2d 642 (R.I. 1978). The evidence must establish that the personally abusive utterance itself “tends to incite an immediate breach of the peace,” Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974) (citation omitted); is “inherently likely to provide violent reaction,” Cohen, 403 U.S. at 20; or is “likely to provoke a violent reaction and retaliation.” Mercer, 214 Va. at 284, 199 S.E.2d at 726. “It is not enough that [the words] merely arouse anger or resentment.” Skelton v. City of Birmingham, 342 So. 2d 933, 937 (Ala. Crim. App. 1976). Rather, the words must “by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.” Id. at 936-37. Obviously, only a narrow class of words falls within this category.

When Hershfield said to his neighbor, “Go fuck yourself,” he conveyed a message of disrespect to her. However, the statute may not be interpreted to prohibit a person’s expressions merely because the words offend or anger an addressee. See Lewis, 415 U.S. at 133-34; Gooding, 405 U.S. at 523. Nor may the state use the statute as a device “to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” Cohen, 403 U.S. at 25. Indeed, almost twenty years ago Justice Powell observed that “[ljanguage likely to offend the sensibility of some listeners is now fairly commonplace in many social gatherings as well as in public performances.” Eaton v. City of Tulsa, 415 U.S. 697, 700 (1974) (Powell, J., concurring).

The words used by Hershfield were vulgar, insulting, and offensive, but they are not punishable under the statute unless they are “fighting words.” Hershfield’s words offensively suggested to his neighbor a sexual activity; however, they did not suggest a challenge or an intimation of threatening contact. In Rozier v. State, 140 Ga. App. 356, 231 S.E.2d 131 (1976), the court held as a matter of law that a vulgar sexual proposition made to a female in her presence “did not constitute ‘fighting words.’ ” Id. Other courts have held that use of the words “fuck you,” even when addressed to another, are not punishable as fighting words “in the absence of compelling reasons.” Diehl v. State, 294 Md. 466, 477, 451 A.2d 115, 122 (1982), cert. denied, 460 U.S. 1098 (1983). See also Ware v. City & County of Denver, 182 Colo. 177, 511 P.2d 475 (1973); Downs v. State, 278 Md. 610, 618, 366 A.2d 41, 46 (1976), cert. denied, 431 U.S. 974 (1977); City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991).

The trier of fact could not reasonably find on this record that the words were inherently likely to cause violence. See Gooding, 405 U.S. at 528; In re Welfare of S.L.J., 263 N.W.2d 412, 418-20 (Minn. 1978). While the words clearly are vulgar, they are not inherently likely to cause violence. No evidence established that Hershfield’s comment has the inherent quality of causing visceral, reflexive violence. In construing the statute narrowly to meet constitutional standards, a Court may not read the statute to vest in the trier of fact the unfettered discretion to enforce an amorphous “suitable” level of discourse. Gooding, 405 U.S. at 528. “[S]o long as the means are peaceful, the communication need not meet standards of acceptability.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). Moreover, reliance upon “common understanding and practice” as a measure of the likelihood of causing violence does not serve to limit the statute to “fighting words.” Gooding, 405 U.S. at 528.

Only if Hershfield’s words were “words of a kind and nature ... as by their utterance reasonably tend to provoke a breach of the peace,” Mercer, 214 Va. at 284, 199 S.E.2d at 726, does it become necessary to analyze the “circumstances” under which they were spoken. Id. See also Lewis, 415 U.S. at 134; In re Welfare of S.L.J., 263 N.W.2d at 419; Downs, 278 Md. at 617, 366 A.2d at 44; City of St. Louis v. Tinker, 542 S.W.2d 512, 519 (Mo. 1976). If one assumes, as the majority implicitly does, that the words fall within the proscribed category, I find no evidence that the circumstances reasonably tended to cause a breach of the peace. There is no evidence that Walker’s reaction was uncharacteristic of a reasonable person in a like situation. Although Walker heard the comment, the parties were separated by some twenty yards and a fence when Hershfield spoke. There is no evidence that Hershfield’s tone was one of violence or severe agitation. Neither party had approached or spoken to the other prior to Hershfield’s utterance of this phrase. The record does not show that Walker manifested a disposition to retaliate violently upon hearing Hershfield’s comment. Rather, Walker chose to approach Hershfield and ask him why he spoke the words. Hershfield made no further response. Asking a question in response to vulgar speech is not the “breach of the peace” anticipated under Code § 18.2-416.

“A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425 (1918). Unseemly words which have become “fairly commonplace in many social gatherings as well as in public performance,” Eaton v. City of Tulsa, 415 U.S. at 700 (Powell, J., concurring), may cause discomfort and anger but do not rise to the level of fighting words. “Words are often chosen as much for their emotive as their cognitive force.” Cohen, 403 U.S. at 26.

[C]urses, oaths, expletives, execrations, imprecations, maledictions, and the whole vocabulary of insults are not intended or susceptible of literal interpretation. They are expressions of annoyance and hostility — nothing more. To attach greater significance to them is stupid, ignorant, or naive. Their significance is emotional, and it is not merely immeasurable but also variable. The emotional quality of exclamations varies from time to time, from region to region, and as between social, cultural, and ethnic groups.

City of St. Paul v. Morris, 258 Minn. 467, 480-81, 104 N.W.2d 902, 910 (1960) (Loevinger, J., dissenting), cert. denied, 365 U.S. 815 (1961). “One [person’s] vulgarity is another’s lyric.” Cohen, 403 U.S. at 25.

In order to sustain a conviction under Code § 18.2-416, it is not sufficient that the words cause anger and resentment. To be fighting words, they must be inherently likely to cause an immediate violent response. Although I concur with the majority that the conviction is invalid, I do so because the words spoken by Hershfield were not fighting words. I agree, however, that the circumstances, viewed in toto, also do not constitutionally support a conviction under Code § 18.2-416.